Dunbar v. Twin Towers Condo. Assn.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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DUNBAR v. TWIN TOWERS CONDO. ASSN.
Cite as 26 Neb. Ct. App. 354
J. M ark Dunbar, appellant, v. Twin Towers
Condominium Association, Inc., a Nebraska
nonprofit corporation, et al., appellees
___ N.W.2d ___
Filed September 25, 2018. No. A-17-682.
1. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
2. Rules of the Supreme Court: Appeal and Error. Neb. Ct. R. App. P.
§ 2-109(D)(4) (rev. 2014) requires that a cross-appeal be prepared in
the same manner and under the same rules as the brief of the appellant.
Thus, the cross-appeal section must set forth a separate title page, a table
of contents, a statement of the case, assigned errors, propositions of law,
and a statement of facts.
3. ____: ____. In order for affirmative relief to be obtained, a cross-appeal
must be properly designated in accordance with Neb. Ct. R. App. P.
§ 2-109(D)(4) (rev. 2014).
4. Statutes: Appeal and Error. The meaning of a statute is a question of
law, and a reviewing court is obligated to reach conclusions independent
of the determination made below.
5. Summary Judgment: Jurisdiction: Appeal and Error. When review-
ing cross-motions for summary judgment, an appellate court acquires
jurisdiction over both motions and may determine the controversy that
is the subject of those motions; an appellate court may also specify the
issues as to which questions of fact remain and direct further proceed-
ings as the court deems necessary.
6. Statutes. To the extent that there is conflict between two statutes on the
same subject, the specific statute controls over the general statute.
7. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
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DUNBAR v. TWIN TOWERS CONDO. ASSN.
Cite as 26 Neb. Ct. App. 354
8. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
9. Actions: Moot Question. An action becomes moot when the issues
initially presented in the proceedings no longer exist or the parties lack
a legally cognizable interest in the outcome of the action.
10. Moot Question: Words and Phrases. A moot case is one which seeks
to determine a question that no longer rests upon existing facts or
rights—i.e., a case in which the issues presented are no longer alive.
11. Moot Question. Mootness refers to events occurring after the filing of
a suit which eradicate the requisite personal interest in the resolution of
the dispute that existed at the beginning of the litigation.
12. Moot Question: Jurisdiction: Appeal and Error. Although mootness
does not prevent appellate jurisdiction, it is a justiciability doctrine that
can prevent courts from exercising jurisdiction.
13. Declaratory Judgments: Moot Question. A declaratory judgment
action becomes moot when the issues initially presented in the proceed-
ings no longer exist or the parties lack a legally cognizable interest in
the outcome of the action.
14. Summary Judgment. Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose that there is no genuine
dispute as to any material fact or as to the ultimate inferences that may
be drawn from those facts and that the moving party is entitled to judg-
ment as a matter of law.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed in part, and in part reversed and
remanded with directions.
J. Mark Dunbar, pro se.
Dennis P. Lee, of Lee Law Office, for appellee Twin Towers
Condominium Association, Inc.
Pirtle, R iedmann, and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
J. Mark Dunbar, a condominium unit owner, brought an
action against Twin Towers Condominium Association, Inc.
(Association); LRC Management II LLC; and anonymous
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defendants “Does 1-10.” Dunbar was seeking relief related to
actions taken by the Association. The issues on appeal involve
only Dunbar and the Association. Summary judgment motions
and orders filed prior to trial disposed of some of Dunbar’s
claims, but not all of them. Dunbar appeals and the Association
attempts to cross-appeal from the order entered by the Douglas
County District Court following trial. Dunbar challenges the
district court’s conclusion that a pet policy amendment to
the Association’s master deed was valid. Dunbar also chal-
lenges the district court’s conclusion that the Association’s
adopted resolution regarding an owner’s access to records and
its procedures for making records available were consistent
with nonprofit corporation laws and condominium laws. The
Association’s attempted cross-appeal is related to attorney fees.
We affirm in part and in part reverse the district court’s deci-
sion and remand the cause with directions.
II. BACKGROUND
The “Twin Towers Condominium” was established by a
master deed recorded on December 30, 1983, and consists of
residential units, commercial units, and parking areas. The
master deed provides that the Association, a Nebraska nonprofit
corporation, was incorporated “to provide a vehicle for the
management of the condominium” and that each “co-owner” of
a condominium unit is automatically deemed a member of the
Association. Dunbar purchased a residential unit in 2003 and is
therefore a member. According to the Association’s bylaws, a
board of not fewer than three nor more than five administrators
or directors (elected by the members annually) manages the
affairs of the Association.
Since February 2010, Blackthorne Real Estate Property
Development Company, Inc. (Blackthorne), has provided prop-
erty management for the Association and is the Association’s
registered agent. David Davis, Blackthorne’s president, testi-
fied that Blackthorne, as property manager for the Association,
“handle[s] the day-to-day operations of the property,” including
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maintenance, collection of dues and special assessments, pay-
ment of vendor bills, negotiation of contracts with vendors,
and “the day-to-day contact with unit owners and the Board.”
Blackthorne is the custodian of the Association’s documents,
and it prepares a budget and provides reports to the Association
regarding the Association’s financial affairs. Davis also attends
board meetings, and his company, Blackthorne, staffs an office
located in the Twin Towers Condominium. There is a computer
in that office made available to owners, where they can view
financial documents, the master deed, some correspondence,
and minutes from meetings.
Dunbar, formerly a licensed architect in Texas and currently
an attorney still active with the California bar, testified at trial
that if the Association “should mismanage its expenses or
should overpay vendors, it is owners like [him] who are forced
to pay.” Or if the Association decides to invest “hundreds of
thousands or millions of dollars on capital improvements, the
Association is able to assess [Dunbar] and force [him] on a
personal basis to pay those expenses.” Therefore, the right
to examine documents is the only way Dunbar can determine
why he is incurring “monthly dues assessments.” He claims
to have suffered damages as a result of the Association’s
mismanagement of its income, repairs, and capital improve-
ments. As examples, he described his share of assessments
he had to pay in 2011 ($3,000 for a parking garage renova-
tion), 2013 ($1,200 for “chiller repair”), and 2014 ($5,000 for
elevator and roof repairs). These assessments are in addition
to “ordinary monthly or annual expenses” paid by owners
for services such as property management, are in addition to
utilities, and are “extraordinary, largely unexpected, unantici-
pated burdens on property owners such as [Dunbar].” Dunbar
initially opened up a dialogue with his “fellow unit owners”
through “telephone conversations, meetings and . . . a website
[he] created” to assemble documents for the owners to “figure
out what was happening to [the owners’] property invest-
ment.” He then “took the formal steps necessary to force an
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examination of the Association’s records in order that [he]
might be more fully informed about the nature of the income
and expenses that the Association was handling for [him] and
[his] fellow owners.”
Dunbar requested and received documents in March 2014.
According to an Association officer, “23 sets of various docu-
ments” were sent to Dunbar at that time. Dunbar proceeded to
publish those documents on his personal website; the officer
claimed some of the documents included vendor contracts
which contained confidential information. A year later, on
March 10, 2015, Dunbar sent a letter to the Association again
requesting financial records. On April 14, the Association’s
board passed a “Resolution on Documents Provided on Request
of an Owner” (resolution). According to Davis, the resolution
was drawn up because Dunbar previously posted documents on
his website. The resolution stated the board “desires to adopt
a uniform policy and procedure to respond to such owner
requests for Association records and documents.” The resolu-
tion also stated, in part:
3: In responding to a request of an Owner for any finan-
cial records or financial information the [Association]
other than the annual budget [sic], pursuant to Neb. Rev.
Stat. section 21-19,166 (c), may make a policy decision
on providing such documents to the requesting owner if:
A: The [Association] determines that the owner’s
demand is made in good faith and for a proper purpose;
B: In the written request the owner describes with
reasonable particularity the purpose and the copies of the
records the member desires; and
[C]: The records are directly connected with such pur-
pose as described by the owner.
4: Any request made by an owner for documents shall
be referred to the . . . Board . . . for review and action.
The Board may consider such request at its next . . .
meeting. In the event the Board determines to produce
any or all of the documents requested by the owner such
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documents shall be provided to the owner within five (5)
days of the decision of the Board related to such docu-
ment request and the Board’s determination required by
Neb. Rev. Stat[.] section 21-19,166 (c).
Also, after the adoption of the resolution, the board decided
to create a website for the owners, which is managed by
Blackthorne. Davis indicated that the board directed him to
place on that website all financial documents, board meeting
minutes, and other pertinent documents, such as the master
deed, bylaws, and amendments. Email communications and
announcements for elections and social events are posted on
the website as well. Any document marked with “PDF” is
a protected file that can be opened by an owner registered
on the board’s Twin Towers Condominium website, but the
protected files cannot be copied. The financial records are all
marked as protected files.
The Association sent a letter to Dunbar on April 20, 2015,
which, in relevant part, purported it would provide him with
copies of the documents he requested. Davis sent Dunbar six
emails attaching various documents on April 25, but accord-
ing to Dunbar, not a single document was responsive to
Dunbar’s requests. On November 16, Dunbar sent another let-
ter again requesting various financial records. The Association
sent a letter on November 20 informing Dunbar that the
board voted to deny his request for documents. It explained
that his request was denied because Dunbar received docu-
ments in March 2014 and posted documents on his personal
Twin Towers Condominium website. The Association stated
that this violated confidentiality provisions on some of the
documents and exposed the Association “to potential claims
of financial liability for disclosure of confidential propri-
etary information and breach of fiduciary duty.” The letter
also stated:
[B]ased on Neb. Rev. Stat. section 21-19,166(c)(1) and
21-19,166(c)(3) the Board hereby denies your document
request and finds that
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(1) your demand is not “made in good faith and for a
proper purpose”, and
(2) . . . the records you have requested are not “directly
connected with this purpose.”
(Emphasis in original.)
On March 1, 2016, Dunbar filed a lawsuit related to a
number of actions taken by the Association. Both Dunbar
and the Association filed motions for summary judgment;
each obtained some relief, but several claims remained unde-
cided. The Association subsequently filed another summary
judgment motion, and Dunbar filed a motion for reconsid-
eration. Following another hearing, the Association was suc-
cessful in getting one more claim resolved in its favor, but
three claims still remained. Trial on the remaining claims
took place on May 15, 2017. At the onset of trial, the parties
reached an agreement and stipulated to an issue regarding
the basic values for the condominium units. This left for trial
only the claims related to Dunbar’s request for access to and
the right to copy Association records, and the Association’s
resolution regarding access to records. On June 2, the dis-
trict court entered an order dismissing Dunbar’s remain-
ing claims. Dunbar appeals, and the Association attempts to
cross-appeal.
III. ASSIGNMENTS OF ERROR
Dunbar assigns, consolidated and restated, that the dis-
trict court erred by (1) failing to find that the Association’s
resolution limiting document inspection by unit owners was
in conflict with Neb. Rev. Stat. § 76-876 (Reissue 2009)
and thereby erroneously denying Dunbar’s request to examine
“‘all’” records, (2) holding that the statutory right to examine
records under § 76-876 does not include the right to copy those
records, and (3) failing to find that the purported amendment
to the master deed regarding pets was invalid.
[1] Although Dunbar assigns error and sets forth facts
related to the parties’ stipulation regarding basic values for
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the condominium units, he does not specifically argue this
error. Accordingly, we will not address it. To be considered
by an appellate court, an alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error. Fetherkile v. Fetherkile, 299 Neb. 76, 907
N.W.2d 275 (2018).
[2,3] In its attempted cross-appeal, the Association appears
to be claiming the district court erred by failing to award it
attorney fees pursuant to Neb. Rev. Stat. § 25-824 (Reissue
2016), which permits such fees when a court determines an
action was frivolous. However, the Association’s brief does
not comply with Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014),
which requires that a cross-appeal be prepared “in the same
manner and under the same rules as the brief of appellant.”
“Thus, the cross-appeal section must set forth a separate title
page, a table of contents, a statement of the case, assigned
errors, propositions of law, and a statement of facts.” Friedman
v. Friedman, 290 Neb. 973, 984, 863 N.W.2d 153, 162 (2015).
In order for affirmative relief to be obtained, a cross-appeal
must be properly designated in accordance with § 2-109(D)(4).
See Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012).
We therefore do not address the Association’s attempted
cross-appeal.
IV. STANDARD OF REVIEW
[4] The meaning of a statute is a question of law, and a
reviewing court is obligated to reach conclusions independent
of the determination made below. In re Application of City of
Neligh, 299 Neb. 517, 909 N.W.2d 73 (2018).
[5] When reviewing cross-motions for summary judgment,
an appellate court acquires jurisdiction over both motions and
may determine the controversy that is the subject of those
motions; an appellate court may also specify the issues as to
which questions of fact remain and direct further proceedings
as the court deems necessary. Johnson v. Nelson, 290 Neb. 703,
861 N.W.2d 705 (2015).
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V. ANALYSIS
1. Association’s R esolution Limiting
Access to Documents
The Association’s resolution at issue incorporates some lan-
guage from condominium statutes and nonprofit corporation
statutes; the resolution limited an owner’s access to certain
Association records and, other than the annual budget, made
discretionary to the board the decision to produce financial
records and certain written communications. Dunbar claims
the district court erred by failing to find that the resolution
conflicts with § 76-876, which is a statute specific to con-
dominiums and an owner’s access to records. He asserts that
the nonprofit corporation statutes are of “general application”
in this case, that the statutes controlling condominiums are
“more specific,” and that therefore, to the extent they are in
conflict, the “qualified right” provided by the nonprofit laws
must yield to the “unqualified right” of the condominium laws
to inspect all records of the Association. Brief for appellant at
23 (emphasis in original). On the other hand, the Association
argues that the adoption of the resolution was lawful and is
consistent with the condominium laws and the nonprofit cor-
poration laws.
Accordingly, we next examine the relevant statutes for con-
dominiums and nonprofit corporations as pertinent to Dunbar’s
request for access to and copies of Association records.
(a) Statutory Background Specific
to Condominiums
Nebraska has two condominium acts: the Condominium
Property Act (CPA), Neb. Rev. Stat. §§ 76-801 to 76-823
(Reissue 2009), and the Nebraska Condominium Act (NCA),
Neb. Rev. Stat. §§ 76-825 to 76-894 (Reissue 2009 & Cum.
Supp. 2016). See Twin Towers Condo. Assn. v. Bel Fury Invest.
Group, 290 Neb. 329, 860 N.W.2d 147 (2015). Generally, the
CPA governs condominium regimes created under a “mas-
ter deed” before 1984, and the NCA governs those created
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under a “declaration” on or after January 1, 1984. See Twin
Towers Condo. Assn. v. Bel Fury Invest. Group, 290 Neb. at
336, 860 N.W.2d at 155. As noted earlier, the Twin Towers
Condominium was established by a master deed recorded on
December 30, 1983; therefore, the CPA is applicable and, as
will be discussed, certain statutes under the NCA are also
applicable.
Both sets of condominium laws provide for the examination
of records. Section 76-816 under the CPA (pre-1984) states, in
relevant part:
The board of administrators . . . shall keep or cause
to be kept a book with a detailed account, in chrono-
logical order, of the receipts and expenditures affecting
the condominium property regime and its administration
and specifying the maintenance and repair expenses of
the common elements and all other expenses incurred.
Both the book and the vouchers accrediting the entries
made thereupon shall be available for examination by
any co-owner or any prospective purchaser at convenient
hours on working days that shall be set and announced
for general knowledge. . . . For condominiums created
in this state before January 1, 1984, the provision on the
records of the administrative body or association in sec-
tion 76-876 shall apply to the extent necessary in constru-
ing the provisions of [§] 76-876 . . . which apply to events
and circumstances which occur after January 1, 1984.
Section 76-876 of the NCA (effective 1984) states: “The
association shall keep financial records sufficiently detailed
to enable the association to comply with section 76-884. All
financial and other records of the association shall be made
reasonably available for examination by any unit owner and his
or her authorized agents.”
Section 76-884, which pertains to the resale of a condo-
minium unit, states in relevant part:
(a) Except in the case of a sale where delivery of a
public-offering statement is required . . . the unit owner
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and any other person in the business of selling real estate
who offers a unit to a purchaser shall furnish to a pur-
chaser before conveyance a copy of the declaration other
than the plats and plans, the bylaws, the rules or regula-
tions of the association, and the following information:
(1) a statement setting forth the amount of the monthly
common expense assessment and any unpaid common
expense or special assessment currently due and payable
from the selling unit owner;
(2) any other fees payable by unit owners;
(3) the most recent regularly prepared balance sheet and
income and expense statement, if any, of the association;
(4) the current operating budget of the association,
if any;
(5) a statement that a copy of any insurance policy
provided for the benefit of unit owners is available . . .
upon request; and
(6) a statement of the remaining term of any leasehold
estate affecting the condominium . . . .
(b) The association, within ten days after a request
by a unit owner, shall furnish in writing the informa-
tion necessary to enable the unit owner to comply with
this section.
Importantly, § 76-826(a) of the NCA states that certain sec-
tions of the NCA shall apply, to the extent necessary to con-
strue that section, to all condominiums created before January
1, 1984, “but those sections apply only with respect to events
and circumstances occurring after January 1, 1984, and do not
invalidate existing provisions of the master deed, bylaws, or
plans of those condominiums.” Section 76-826(a) identifies
§§ 76-876 and 76-884 as being applicable to all condomini-
ums created before 1984 for events and circumstances occur-
ring after January 1, 1984.
Therefore, we will consider both §§ 76-876 and 76-884 in
determining Dunbar’s rights to access and copy Association
records. Neither Dunbar nor the Association contends that the
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master deed or bylaws contain any language which should
govern the outcome of the records issue raised, so our review
focuses on the language of the statutes. We have provided
the relevant condominium statutes above; however, since the
Association has also relied on Nebraska’s nonprofit corporation
laws to support its position, we set forth those relevant statu-
tory provisions next.
(b) Nonprofit Corporation Statutes
Related to Records
The Association claims that because it is incorporated under
the Nebraska Nonprofit Corporation Act, see Neb. Rev. Stat.
§ 21-1901 et seq. (Reissue 2012 & Supp. 2017), the records
issue is governed by both Nebraska’s nonprofit corporation
statutes and the condominium statutes. As relevant here, the
nonprofit corporation statutes require such corporations to
maintain certain corporate records as set forth in § 21-19,165(a)
through (e). Interestingly, § 21-19,165(a) requires a corporation
to keep permanent records of minutes of all meetings of its
members and board of directors, of all actions taken by mem-
bers or directors without a meeting, and of all actions taken
by committees of the board. Despite that requirement, we note
that the Association’s resolution indicates that it will provide
minutes of any meeting “if maintained.” However, maintaining
permanent records of minutes of all meetings is not discretion-
ary under the nonprofit statutes.
Section 21-19,165(b) requires the corporation to maintain
appropriate accounting records. Section 21-19,165(e) requires
the corporation to keep a copy of the following records at its
principal office: articles of incorporation and all amendments
currently in effect; bylaws and all amendments currently in
effect; resolutions adopted by the board of directors related to
characteristics, qualifications, rights, limitations, and obliga-
tions of members; minutes of all meetings of members; records
of all actions approved by the members for the past 3 years;
all written communications to members generally within the
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past 3 years, including financial statements furnished under
§ 21-19,170; a list of names and addresses of current directors
and officers; and its most recent biennial report delivered to the
Secretary of State.
With regard to access to and copying of corporation records,
we note the following statutory requirements: Other than an
exception provided for a religious corporation, and subject to
the requesting member being charged for costs, § 21-19,166(a)
provides, in relevant part, that upon 5 days’ written notice or
written demand, “a member is entitled to inspect and copy,
at a reasonable time and location specified by the corpora-
tion, any of the records of the corporation described” in
§ 21-19,165(e) (which we have identified in the preceding
paragraph). Notably, that also includes all financial statements
described in § 21-19,170, which provides for a corporation to
furnish a member with its latest financial statements, including
a balance sheet as of the end of the fiscal year and a statement
of operation for that year. The documents referred to under
§ 21-19,166(a) are not subject to the requirements set forth
under § 21-19,166(c), as discussed next.
Section 21-19,166(b) permits a member to inspect and copy
additional records if the member meets the requirements of
§ 21-19,166(c). Again, other than an exception provided for
a religious corporation, and subject to the requesting member
being charged for costs, upon 5 days’ written notice to the cor-
poration, § 21-19,166(b) provides for the inspection and copy-
ing of the following: “(1) Excerpts from any records required
to be maintained under subsection (a) of section 21-19,165,
to the extent not subject to inspection under subsection (a) of
this section; (2) Accounting records of the corporation; and
(3) Subject to section 21-19,169, the membership list.” The
records described above in § 21-19,166(b) are in addition to
those referred to in § 21-19,166(a) (which refers to the records
identified in § 21-19,165(e)). Therefore, it is only the addi-
tional records under § 21-19,166(b) which are subject to the
requirements set forth in § 21-19,166(c). Section 21-19,166(c)
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states that a member may inspect and copy the records identi-
fied in subsection (b) only if “(1) [t]he member’s demand is
made in good faith and for a proper purpose; (2) [t]he member
describes with reasonable particularity the purpose and the
records the member desires to inspect; and (3) [t]he records are
directly connected with this purpose.” The resolution passed by
the board in the present case made the requirements described
in § 21-19,166(c) applicable to “any financial records or finan-
cial information” requested by an owner, except for “the annual
budget.” This is not consistent with § 21-19,166(a), which per-
mits a member to inspect and copy, without conditions, those
records described in § 21-19,165(e), which include financial
statements that include a balance sheet as of the end of the
fiscal year and a statement of operations for that year. See
§§ 21-19,165(e)(5) and 21-19,170(a). Accordingly, the board’s
resolution incorporating the language of § 21-19,166(c) and
making it applicable to all financial records requested (other
than the annual budget) is not consistent with the nonprofit
corporation statutes.
(c) District Court’s Decisions
In addition to the nonprofit corporation statutes, the
Association relied upon § 76-884 (information required for
resale of a condominium unit) to support its position that the
resolution was appropriate and that Dunbar had been provided
all documents required under the law. Dunbar argued that
the documents listed in § 76-884 were a minimum records
requirement for the association and that § 76-876 required
all financial and other records of the association to be made
reasonably available for examination by any unit owner. In a
summary judgment order entered August 31, 2016, the district
court concluded that § 76-884 was not the controlling stat-
ute, stating:
The two statu[t]es are plainly distinctive. As stated
above, § 76-884 places a duty on the condominium
owner to furnish the pr[e]scribed records to a prospective
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buyer. Neb. Rev. Stat. § 76-876 is more expansive and
places a duty on the condominium association to main-
tain records and make them reasonably available to con-
dominium owners.
The court then set forth the entirety of § 76-876 and pointed
out that the statute is “two sentences long.” The court noted
that the first sentence required the Association to keep records
sufficiently detailed to enable the Association to comply with
§ 76-884 and that “[i]f the records specifically enumerated
in § 76-884 were the only records that § 76-876 required the
[A]ssociation to make available to owners, then the statu[t]e
would end after the first sentence.” The court emphasized the
language in the second sentence of § 76-876, which says, “All
financial and other records of the association shall be made
reasonably available for examination by any unit owner . . . .”
We agree with the district court that § 76-884 does not govern
which records a condominium owner has the right to access
and that the second sentence contained in § 76-876 provides
the controlling language.
The district court went on to find that there were genuine
issues of material fact regarding the Association’s compliance
with the condominium laws and therefore denied summary
judgment on the issues related to the resolution and access to
records. Following trial, however, the court dismissed Dunbar’s
remaining claims. In its order entered June 2, 2017, the court
stated, in relevant part:
In applying the law associated with both non-profit
organizations as well as condominiums, the Court finds
the [Association] has complied with the law in provid-
ing owners with financial and other information pursu-
ant to Neb. Rev. Stat. §76-876. The Association has
established a process to provide owners financial and
other records of the [A]ssociation and has this informa-
tion reasonably available for examination by any unit
owner and his or her authorized agents. In addition, the
Court finds the methods of providing information to the
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owners by the [Association] comply with Nebraska law.
The resolution adopted by the [Association] does not
conflict with the law and is consistent with the Nebraska
Non-Profit Corporation Act. In addition, the resolution
does not conflict with the [NCA]. The documents and
method of making the financial and other records avail-
able comply with the requirement that this information
is made reasonably available to owners and their agents.
Further, the resolution found in Exhibit 115 does not
prohibit owners from the ability to examine financial
and other records of the [Association]. The method [the
Association] provide[s] to owners for examination of
records is reasonable. The Court does not find there to
be a statutory requirement for [the Association] to allow
copies to be made. [The Association has] both a website
and an on-site computer where owners can review finan-
cial and other documents at their leisure.
The relief sought by Dunbar was denied, and the case was
dismissed.
(d) Reconciling Condominium Statutes
With Nonprofit Statutes
The district court concluded the Association’s resolution
limiting access to records was in compliance with the non-
profit laws and the condominium laws. However, as already
noted, the Association’s reliance on § 21-19,166(c) to limit
an owner’s access to all financial records (other than annual
budget) is not consistent with the nonprofit corporation statutes
discussed above. Further, the resolution is not consistent with
the applicable provision of the condominium laws, specifically
§ 76-876. The plain language of § 76-876 gives a condo-
minium owner the right to examine “[a]ll financial and other
records of the association . . . .” Therefore, even if the resolu-
tion had been written in a manner consistent with the nonprofit
corporation statutes, it would have nevertheless conflicted with
the rights conferred upon owners under the condominium laws
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written specifically for their common ownership interests in the
condominium regime.
[6] To the extent that there is conflict between two statutes
on the same subject, the specific statute controls over the
general statute. Cox Nebraska Telecom v. Qwest Corp., 268
Neb. 676, 687 N.W.2d 188 (2004) (specific statutes governing
telecommunications appeals control over general provisions
governing appeals from Public Service Commission).
The Nebraska Nonprofit Corporation Act applies broadly
to all nonprofit corporations and therefore is of general appli-
cation in this case, whereas the NCA applies only to con-
dominium regimes and condominium owners and therefore
has specific application to the issues before us. To construe
any language of the nonprofit corporation statutes to control
the language of § 76-876 would have the effect of nullifying
or making meaningless the words “[a]ll financial and other
records,” as set forth in the condominium statute. We therefore
conclude § 76-876 controls a condominium owner’s right to
examine all financial and other records of its association.
The Association points us to the considerable records it
does publish, including but not limited to “the Master Deed
. . . , election results . . . , the financial records from 2015
. . . , the certificate of insurance . . . , the complete finan-
cial records of the [Association], the operating budget . . . ,
budget comparative balance and balance sheet . . . , income
statement . . . , and the [Association] check register . . . .”
Brief for appellee at 37. Those records are available on a
website operated by the Association and available to owners
without internet access in “the [Association] building office.”
Id. The Association argues that the “records resolution is a
lawful and proper exercise of its fiduciary duty to its own-
ers and members” and that it is a “proper balance between
owners and members that seek records of the [Association]
and the limited owners/members of the [Association], like
[Dunbar], who abuse the rights to [Association] records by
making demands that the [Association] Board reasonably
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determines to not be in good faith and not for a proper pur-
pose.” Id. at 36.
However, that balance is not the Association’s to strike; the
decision regarding a condominium owner’s access to records
was decided by the legislative branch when enacting the CPA
and NCA. Further, as Dunbar aptly points out, “[t]he right of
condominium owners to examine records does not turn on
whether the [A]ssociation happens to be organized as a cor-
poration or not.” Brief for appellant at 24. As Dunbar argues,
“‘all’ means all,” reply brief for appellant at 7, and condomin-
ium owners are entitled to examine whatever financial or other
records exist, per the plain language of the NCA.
We therefore reverse the district court’s order determin-
ing that the resolution did not conflict with Dunbar’s rights
under § 76-876. We also reverse the district court’s finding
that the resolution was in compliance with the nonprofit cor-
poration statutes. We remand the cause to the district court
with directions to issue an order finding that the Association’s
resolution was neither in compliance with the NCA, specifi-
cally § 76-876, nor in compliance with the nonprofit statutes
as discussed above, and further finding that Dunbar is entitled
to “[a]ll financial and other records of the association” under
§ 76-876, which records shall be made reasonably available
for examination. We next discuss Dunbar’s argument that mak-
ing the records reasonably available includes allowing him to
make copies.
2. R ight to Copy R ecords
The district court’s June 2, 2017, order states, “The
Association has established a process to provide owners finan-
cial and other records of the [A]ssociation and has this infor-
mation reasonably available for examination by any unit owner
and his or her authorized agents.” The court further found that
there was no “statutory requirement for [the Association] to
allow copies to be made. [The Association has] both a website
and an on-site computer where owners can review financial
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and other documents at their leisure.” We agree with the court’s
determination on this issue, so long as the records being made
available to the owners include, under § 76-876, “[a]ll financial
and other records of the association.”
Dunbar argues that § 76-876 carries with it “the right to
‘copy’ such records.” Brief for appellant at 25. Dunbar points
us to case law from several other jurisdictions interpreting
various statutory rights to inspect or examine records which
he claims supports his argument that the right to examine
documents includes the right to copy them. He also points to
Neb. Rev. Stat. § 84-712 (Reissue 2014), but that statute per-
tains to public records and is not applicable here.
[7,8] However, we need not consider how other states may
handle the copying of records for condominium owners when
the plain language of § 76-876 requires only that such records
be made “reasonably available for examination by any unit
owner and his or her authorized agents.” Statutory language is
to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and unambiguous.
Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018). It is
not within the province of the courts to read a meaning into a
statute that is not there or to read anything direct and plain out
of a statute. Id.
We decline to read into the language of § 76-876 a right to
make copies of the records. The Legislature did not include
any such language regarding copies in the statute, which it
could have done, like it has with other statutory schemes. For
example, § 21-19,166(a) of the nonprofit corporation laws,
set forth earlier, provides that “a member is entitled to inspect
and copy” certain corporation records. Even the Association
acknowledged, in its closing argument at trial, the existence of
rights to inspect and copy certain records under the nonprofit
corporation statutes. However, we need not address whether
some of the records sought by Dunbar should be available for
copying under the nonprofit corporation statutes, as Dunbar’s
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argument at trial and on appeal was only that his right to
access all records included the right to copy all records under
§ 76-876. We agree with the district court that § 76-876 does
not confer on condominium owners the right to make copies
of all records; rather, it gives them the right to examine all
of them.
3. A mendment to M aster Deed
R egarding Pets
The Association filed an amendment (regarding pets) to
the master deed with the Douglas County register of deeds on
August 3, 2011. Dunbar sought a declaration that the amend-
ment was void or invalid and that it should be voided or
“stricken by the Recorder of Deeds.” Dunbar’s requested relief
was denied by the district court.
The master deed, at paragraph 7(i), states, “Household pets
will be subject to regulation, restriction, exclusion and special
assessment, as may be determined by the Association from
time to time.” The 2011 amendment, which was signed by the
Association president on August 24, 2010, attaches a 2-page
“Exhibit A” titled “Twin Towers Condominium Association
Pet Addendum.” The addendum limits the number of cats and
dogs per unit, with dogs limited to a weight of “25 pounds
or less per dog.” Certain breeds of dogs are “never accept-
able,” and “[e]xotic pets” are not allowed. There are a number
of rules regarding expectations of pet and owner behaviors
set forth in the addendum, including that pets violating the
policy may be required to be permanently removed from the
property and owners may be subject to fines. The addendum
also provides that the board or property manager “shall from
time to time have the right to make reasonable changes and
additions to the pet policies, if said changes are in writing
and distributed to all owners/renters who are permitted to
have pets.”
Dunbar argues that the amendment to the master deed estab-
lished “as a matter of deeded property rights” which pet breeds
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and sizes were permitted and which were not. Brief for appel-
lant at 29. Dunbar asserts that the amendment
fundamentally changed the pet policy from one that was
subject to the ongoing discretion of the revolving mem-
bership of the . . . board . . . to make and amend rules
regarding the pet policy into one constituting a relatively
permanent set of conditions that could only be altered by
a subsequent master deed amendment.
Id. at 29-30. Dunbar’s concern was that the amendment
removed from the board the authority to regulate pets and,
thus, altered the rights of every unit owner by “transforming
the Association’s rulemaking discretion . . . into a relatively
permanent statement of policy with regard to pets.” Id. at 30.
Dunbar claims that he “has a legally cognizable interest” in
not permitting “his rights under the master deed to be altered
without the consent of the necessary two-thirds majority of
ownership.” Id. The question is, therefore, whether a two-thirds
majority of the ownership approved and properly recorded
the amendment. The Association asserts such a majority did;
Dunbar disagrees.
Both parties filed motions for summary judgment on this
issue, and the court ruled in favor of the Association. The
court’s August 2, 2016, “Order on Cross Motions for Summary
Judgment” referenced the Association’s affidavit, in which
the person who was treasurer at the time of the amendment
stated that an election was held in August 2010 to approve
the amendment. The treasurer stated that although the ballots
were no longer available, the election resulted in more than
two-thirds of the owners voting in support of the amend-
ment. Dunbar’s affidavit asserted that based on his personal
knowledge and his review of the board minutes, there was
no election held in August 2010. The district court found that
Dunbar failed to explain the extent of his personal knowledge,
other than his reading of the minutes, and therefore concluded
Dunbar failed to meet his burden of proof. The district court’s
order also stated, “It should also be noted [Dunbar] stated he
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did not intend to overturn the decision of the Association to
allow owners to have pets. He simply wanted a declaration
that the Association did not follow proper procedure for the
amendment.” The court addressed this issue further in its sub-
sequent order entered August 31 denying Dunbar’s motion to
reconsider this issue. The court stated that “the allegations . . .
regarding the pet amendment are non-judiciable [sic], either as
moot or as an advisory opinion because [Dunbar] is not seek-
ing removal of pets from the condominium.”
[9-13] We first address the district court’s finding that this
issue was nonjusticiable either as moot or as calling for an
advisory opinion. As stated in Nesbitt v. Frakes, 300 Neb. 1, 5,
911 N.W.2d 598, 603 (2018):
An action becomes moot when the issues initially
presented in the proceedings no longer exist or the par-
ties lack a legally cognizable interest in the outcome of
the action. A moot case is one which seeks to determine
a question that no longer rests upon existing facts or
rights—i.e., a case in which the issues presented are no
longer alive. Mootness refers to events occurring after
the filing of a suit which eradicate the requisite personal
interest in the resolution of the dispute that existed at the
beginning of the litigation. Although mootness does not
prevent appellate jurisdiction, it is a justiciability doctrine
that can prevent courts from exercising jurisdiction.
Further, a “declaratory judgment action becomes moot when
the issues initially presented in the proceedings no longer exist
or the parties lack a legally cognizable interest in the outcome
of the action.” Id. at 7, 911 N.W.2d at 604.
The amendment to the master deed altered Dunbar’s prop-
erty rights as a co-owner. The fact that he is not “seeking
removal of pets from the condominium” does not resolve the
issue of whether an invalid amendment to the master deed
was recorded. As a co-owner and member of the Association,
Dunbar continues to have a legally cognizable interest in the
validity of any amendment to the master deed. Therefore, the
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court erred in finding the issue was moot or called for an advi-
sory opinion.
[14] We turn now to the court’s finding that Dunbar failed
to meet his burden of proof to overcome summary judgment
against him. Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose that there is no
genuine dispute as to any material fact or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law. See
Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018).
See, also, Neb. Rev. Stat. § 25-1332 (Supp. 2017).
As noted above, the Association produced an affidavit from
the person serving as treasurer at the time of the amendment
which stated that more than two-thirds of the condominium
owners voted in support of the amendment in August 2010.
Dunbar’s affidavit stated that there was no election “or other
approval by owners . . . that occurred on or before August 24,
2010, as claimed in the purported amendment recorded August
10, 2011.” The minutes of the board meetings immediately
preceding the signing of the amendment by the Association
president on August 24, 2010, were received as evidence. The
April, May, and June 2010 minutes all contain a reference to
a “[p]et policy” or pet-policy-related “update.” Notably, the
May 19 minutes, at paragraph 10, states: “Pet policy update.
Owners representing more than 50% of square footage have
agreed to allow pets. ‘No’ votes represent about 5% of the
building’s square footage. There are still owners who haven’t
been contacted.” The June 28 minutes indicate that a letter will
be sent to “all remaining owners next week” and state, “After
the deadline, we will put out notice of the results.” The July 21
minutes are silent as to any further activity related to the pet
policy. And then significantly, the September 2 minutes show
that the board approved the July minutes; nothing is indicated
showing an August meeting, nor is there anything contained in
the September minutes regarding the final results of the vote
on the pet policy.
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Dunbar also offered into evidence, at the hearing on the
motion to reconsider, the affidavit of an owner of a unit in the
condominium, who averred:
I did not receive any information or notice, formal or
otherwise, of a unit owner’s election that, according to
[the treasurer’s] affidavit, supposedly was held in August
of 2010 regarding a pet amendment to the Master Deed.
As a unit owner who was attentive to the affairs of the
Association, I do not believe that any such unit owner’s
election to amend the Master Deed was held in August
of 2010 and that, if any such election had been held in
August of 2010, I would have become aware of it.
We conclude the evidence was sufficient to create a genuine
dispute as to material facts related to whether a proper vote
was taken and recorded approving an amendment to the master
deed regarding pets. Therefore, summary judgment was not
appropriate on this issue. However, the disposition of this issue
can be decided on other grounds, as discussed next.
Dunbar had sought summary judgment on the basis that the
amendment is invalid on its face, and we agree. Regarding
how to effect an amendment to the master deed, the master
deed states:
Unless a greater number is required by law, co-owners
representing two-thirds or more of the total basic value
of the condominium may at any time in writing duly
acknowledged and recorded effect an amendment to this
Master Deed or the Bylaws of said condominium which
are attached hereto . . . .
As previously noted, the amendment at issue is dated and
signed by the Association’s president on August 24, 2010, but
was not filed with the register of deeds until August 3, 2011.
The amendment states, “[T]he undersigned owners of more
than two-thirds (2/3) of the basic value of the Condominium
desire to amend the By-Laws, Amendment to Master Deed
and Rules and Regulations to allow pets as is described in
Exhibit ‘A’ (attached).” As observed by the district court in its
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August 2, 2016, summary judgment order, the amendment is
signed by the Association president at the time and attached to
the amendment is a list of every owner of an Association unit.
The district court specifically found, “The individual owners
did not sign the amendment.” Dunbar asserts the attachment
is “a printed list of every owner,” instead of signatures. Brief
for appellant at 14.
We agree with Dunbar that the amendment was not in compli-
ance with the master deed’s language for how to effect a proper
amendment to the master deed. The amendment on its face does
not demonstrate that it is a “writing duly acknowledged and
recorded” by “co-owners representing two-thirds or more of
the total basic value of the condominium” as the master deed
specifies. The president is not authorized by the master deed
to amend the master deed in lieu of the requisite co-owners;
nor do the bylaws provide such authority. We also observe that
there is a past amendment to the master deed included in our
record which has an attachment containing the personal signa-
tures of unit owners supporting the amendment.
As to the remedy for an invalid amendment, we are guided
by McGill v. Lion Place Condo. Assn., 291 Neb. 70, 864
N.W.2d 642 (2015), which concluded an improper amendment
to a condominium’s declaration was void. McGill involved a
district court judgment which invalidated the sale of limited
common elements of a condominium governed by the NCA.
The Nebraska Supreme Court affirmed, interpreting one of
the statutes under the NCA (not applicable here) to require
approval by 80 percent of the votes in the association and
unanimous agreement of the unit owners to effectuate the sale.
Unlike the terms of the master deed at issue in the present
matter, in McGill, under the NCA, the association president
could file an amendment to the condominium’s declaration
related to the sale. However, the sale of the limited common
elements at issue still required the votes noted above, and an
agreement for such a conveyance had to be evidenced by the
execution of an agreement in the same manner as a deed and
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by the requisite number of unit owners. The Supreme Court
noted that there was “no evidence of any agreement executed
by the unit owners approving the sale” as required by stat-
ute. McGill v. Lion Place Condo. Assn., 291 Neb. at 92, 864
N.W.2d at 658. Given the lack of compliance with the statute
regarding conveyances of common elements under the NCA,
the Supreme Court agreed with the district court that the con-
veyance was void.
We similarly find, given the lack of compliance with the
plain language of the master deed in the present matter, that the
amendment related to the pet policy is void. No statute under
the CPA, nor any of the statutes under the NCA designated
to apply to condominiums created before January 2, 1984,
change the requirement for how to amend the master deed
in this case. The master deed in the present matter requires
a “writing duly acknowledged and recorded” by “co-owners
representing two-thirds or more of the total basic value of the
condominium.” That requisite acknowledgment and recording
by two-thirds of the co-ownership have not been shown here.
Accordingly, we find the district court erred in failing to grant
summary judgment in favor of Dunbar on this issue, and we
reverse that decision and remand the cause to the district court
to enter an order granting judgment in favor of Dunbar on this
issue and declaring the amendment void.
VI. CONCLUSION
In summary, we reverse the district court’s decision on two
matters: (1) its conclusion that the Association’s resolution
does not conflict with the applicable condominium law on
a member’s right to examine records, specifically § 76-876,
and (2) its decision regarding the validity of the master
deed amendment regarding pets. As to those two matters,
we remand with directions to enter an order in accordance
with this opinion. In all other respects, we affirm the district
court’s orders.
A ffirmed in part, and in part reversed
and remanded with directions.